U.S. Immigration Law White Paper - H-1B Overview

OVERVIEW OF THE H-1B (FORMERLY, H-1) NONIMMIGRANT PROFESSIONAL AND SPECIALTY OCCUPATION WORKER (FORMERLY, DISTINGUISHED MERIT AND ABILITY) VISA PETITION PROCESS:  The H-1B visa (specialty occupation) is required by an employee who is coming to the United States to perform services in a prearranged professional job. To qualify, the alien requires a bachelor’s or higher degree (or equivalent) in the specific specialty for which employment authorization is being sought. It is the responsibility of the U.S. Citizenship and Immigration Services (“USCIS”) to determine whether the employment constitutes a specialty occupation and whether the alien is qualified to perform the services. This overview provides a general outline of the necessary procedures for obtaining an H-1B visa. The H-1B process involves two major steps. First, the Petitioner or Sponsoring Company submits a Labor Condition Application (“LCA”) to an appropriate Regional Office of the U.S. Department of Labor (“DOL”) for certification. Second, the Petitioner or Sponsoring Company files a Petition with the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”) for H-1B visa classification. If the H-1B Applicant is in the United States and holds a valid nonimmigrant visa, he/she may request a change of status. If the H-1B Applicant is outside the U.S., he/she may submit an Application to a U.S. Consular Office overseas to receive multiple-entry H-1B classification.  I.          Filing the LCA By filing the LCA with the DOL, the Petitioner or Sponsoring Company will attest to the following: 1.         That for the entire period of authorized employment, the Petitioner or Sponsoring Company will pay all H-1B alien(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of: the actual wage level paid by the Petitioner or Sponsoring Company to all other individuals with similar experience and qualifications for the specific position in question; or  b.         the prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment.   2.         That for the entire period of authorized employment, the employment of the H-1B alien will not adversely affect the wages and/or working conditions of workers similarly employed in the area of intended employment; and  3.         That, on the date the LCA is signed and submitted, there was not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment; and  That, on or before the date of the LCA, notice of the application was posted in two conspicuous locations at the employer's establishment. The LCA procedure is complaint driven; that is, an investigation into the accuracy of the LCA may occur if a complaint is filed by an aggrieved party; however, administrative agencies may conduct random audits in their discretion.  If a complaint is filed, the DOL Wage and Hour Administrator will investigate the complaint. In the event of a violation of the LCA, the Administrator may (1) impose a $1,000 fine per violation; (2) bar the employer from obtaining future visas for a period of at least one year; and (3) order the employer to provide for payment of back wages (additionally, administrative agencies may conduct audits of other of the Petitioner or Sponsoring Company’s Federal and State Law compliance requirements).  Material misrepresentations on the LCA can subject the signer to penalties for perjury including fines and incarceration. A.        Posting Notice of the Application Notice of the LCA must be posted in at least two conspicuous locations at the place of employment for ten (10) consecutive business days.  The Petitioner or Sponsoring Company must provide a notice of the filing of the labor condition application to its employees by posting a notice in at least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed. We will provide the Petitioner or Sponsoring Company with the paperwork to post. B.         Satisfying Documentation Requirements Within one working day of the filing of the LCA, upon request by any person, the Petitioner or Sponsoring Company must make available for inspection certain documentation about the LCA. We will prepare a "Public Access" folder for the Petitioner or Sponsoring Company to keep for this purpose. This folder must be retained for one year beyond the end of the period of employment specified on the LCA. In addition to the public access documentation, the Petitioner or Sponsoring Company must maintain certain documents for DOL to review in the event of a complaint.  In addition to these documents, the Petitioner or Sponsoring Company must maintain payroll records for each foreign national and any other individuals with experience and qualifications similar to that of the foreign national at the place of employment. The Petitioner or Sponsoring Company must maintain the payroll records for a period of three (3) years from the date of the creation of the records. Prevailing wage level information must be updated every 24 months for the duration of the LCA (i.e., up to six years). The Petitioner or Sponsoring Company should note that 22 months from the date of obtaining the initial prevailing wage determination it may have to obtain new prevailing wage information.    II.        The H-1B Petition and Issuance of the H-1B Visa Once the LCA has been approved, our office shall complete and file the H-1B Petition with the USCIS. The Petition will consist of the Form I-129, the Petitioner or Sponsoring Company's letter of support outlining the position duties and requirements, and supporting documentation, including information about the Petitioner or Sponsoring Company. It typically takes anywhere between six (6) to twelve (12) weeks for the USCIS to approve an H-1B Petition. However, with Premium Processing available, this time may be significantly curtailed. As you may be aware, the new H-1B Law, commonly referred to as the American Competitiveness in the 21st Century Act (“AC-21”), contains an H-1B “portability” provision that purports to allow a prospective H-1B employee to commence employment with a new employer upon the approval of an LCA and the filing of the Petition with the USCIS. At this time, however, we are not recommending that employers/employees utilize the “portability” provisions since there is a high degree of risk (potential civil liabilities) for an employer and the employee if the H-1B is subsequently denied by the USCIS. In addition to the foregoing, at the present time, there are no regulations that interpret the “portability” provisions promulgated in AC-21.             Under regulations promulgated in 1991, in the event the Petitioner or Sponsoring Company dismisses the foreign national from employment before the end of the period of authorized admission, the Petitioner or Sponsoring Company may be responsible for the reasonable costs of return transportation to his/her residence abroad. Pursuant to the Omnibus Appropriations Act (effective December 8, 2004), the Department of Labor’s (“DOL”) Training Fee, originally implemented pursuant to ACWIA, has been reinstated. The fee was raised to $1,500.00 for employers that employ over 25 full-time employees (determined by taking into account an organization’s affiliates or subsidiaries). However for employers that employ 25 full-time employees or less, the training fee is $750.00. Additionally, the H-1B Reform Act of 2004 and Omnibus Appropriations Act instituted a new Fraud Prevention and Detection Fee in the amount of $500.00, which took effect on March 8, 2005 and which must be paid by an employer seeking a beneficiary's first grant of H-1B or L classification or by an employer seeking to change the Beneficiary's employer. Only petitions to amend or extend status filed by an existing H-1B or L employer for an existing H-1B or L employee, will be exempt from this fee. It is the employer’s responsibility to notify us regarding any changes in wages, working conditions, or characteristics of the employment position, or if the foreign national changes jobs. Likewise, please notify us if there are any changes in the organizational structure or ownership of the Petitioner or Sponsoring Company, or if any kind of labor dispute occurs. Such changes can affect both the LCA and the H‑1B Petition, both of which refer to a specific job and to a specific person. If you should have any questions about any of the foregoing, please do not hesitate to contact us.  

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